01a43772
09-15-2004
Gerald S. Nunnally, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Gerald S. Nunnally v. Department of Veterans Affairs
01A43772
September 15, 2004
.
Gerald S. Nunnally,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A43772
Agency No. 200K-0537-2004101002
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated March 31, 2004, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
On December 29, 2003, complainant initiated contact with the EEO office
claiming that he was the victim of unlawful employment discrimination on
the bases of race, sex, age and in reprisal for prior protected activity.
Informal efforts to resolve complainant's concerns were unsuccessful.
In his formal complaint filed on February 20, 2004, complainant alleged
that he was subjected to discrimination when:
1. on or about November 14, 2003, he was notified by the Chairperson
of the Nurse Professional Standards Board that the issue of not being
promoted on July 24, 2003, was not due to lack of education; and
2. on or about November 21, 2002 and April 8, 2003, [a named agency
physician] failed to perform his fiduciary responsibilities as the DDTC
Medical Director by failing to grant complainant's request to reduce his
caseload or to respond to complainant's requests for same, verbally or
in writing.
In its March 31, 2004 FAD, the agency dismissed claim (1) on the grounds
of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2).
The agency determined that complainant's initial EEO Counselor contact
occurred on December 29, 2003, which it found to be well beyond the 45-day
limitation period.<1> The agency further determined that on July 24,
2003, complainant was aware of his non-selection; and that by letter
dated August 20, 2003, to the Chairperson of the Nurse Professional
Standard Board (NPSB), complainant expressed his concerns regarding the
non-selection and requested a �Special Promotion Bonding.� Furthermore,
the agency determined that when in July 2003, complainant completed
informal counseling concerning a separate matter, he demonstrated a
belief that his supervisor had discriminated against him concerning the
matter identified in claim (1) of the instant complaint, but decided
not to pursue EEO counseling. Furthermore, the agency determined that
complainant decided to first engage the NPSB process concerning his
non-selection, prior to initiating pre-complaint EEO counseling regarding
claim (1).
The agency dismissed claim (2) for stating the same claim that had been
decided by the agency, pursuant to 29 C.F.R. � 1614.107(a)(1). The agency
determined that complainant raised the same claim of discrimination in
Agency No. 200K-0537-2003103351.
Claim 1
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission determines that complainant had or should have had a
reasonable suspicion of unlawful employment discrimination well prior
to his December 29, 2003 EEO contact. We note in his August 20, 2003
letter to the Chairperson of the NPSB, complainant requested a special
promotion bonding and that the NPSB �grant an education waiver to effect
the requested promotion to Nurse III.� We find that complainant failed
to present adequate justification for extending the limitation period
beyond forty-five days. Therefore, we find that the agency properly
dismissed claim (1) for untimely EEO Counselor contact.
Claim 2
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides in part that the
agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
Complainant claimed that on or about November 21, 2002 and April 8,
2003, [Doctor] failed to perform his fiduciary responsibilities as
the DDTC Medical Director by failing to grant complainant's request to
reduce his caseload or to respond to complainant's requests for same,
verbally or in writing. We find that complainant's claim is merely an
elaboration of the matter that complainant raised in a prior complaint
(Agency No. 200K-0537-2003103351). Therefore, we find that the agency
properly dismissed claim (2) for stating the same claim.
Because we affirm the dismissal of claim (2) for the reason stated herein,
we will not address alternative grounds of dismissal.
Accordingly, the agency's decision to dismiss the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 15, 2004
__________________
Date
1The record reveals that the agency
inadvertently identified the date of complainant's initial EEO contact
as December 15, 2003, instead of December 29, 2003, as identified in
the EEO Counselor's Report. The disparity in dates does not affect our
disposition of this claim.